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PETITIONER: ALL INDIA SAINIK SCHOOLS EMPLOYEES ASSOCIATION

       Vs.

RESPONDENT: DEFENCE MINISTER-CUM-CHAIRMAN BOARD OFGOVERNORS, SAINIK SCHO

DATE OF JUDGMENT04/10/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH VENKATACHALLIAH, M.N. (J)

CITATION:  1989 AIR   88            1988 SCR  Supl. (3) 398  1989 SCC  Supl.  (1) 205 JT 1988 (4)    22  1988 SCALE  (2)868

ACT:     Civil  Services:  Sainik  School  employees--Cannot   be treated  as Central Government employees--Cannot be  treated on par with employees of Kendriya Vidyalayas. %     Constitution  of India, 1950: Articles 12,  14,  39(d)-- ‘Sainik  School Society’--Whether  ‘State’--Employees  claim for ‘equal pay for equal work’--Whether tenable.     Words and Phrases: ‘Sainik Schools’--What are.

HEADNOTE:     The All India Sainik Schools Employees Association in  a petition  filed  in  this  Court under  Article  32  of  the Constitution has asked for a writ of mandamus directing  the respondents,  primarily, to extend to the employees  working in   the  Sainik  Schools all. the  service   benefits   and advantages  in  the same pattern as  obtaining  in  Kendriya Vidyalaya  Sangthan. The petitioner’s contentions  are  that the  Sainik School Society is ‘State’ within the meaning  of Article  12  and  is  accordingly  amenable  to  claim   and enforcement  of  fundamental rights, and  further  that  the society  has to be guided by what is provided in Part  4  of the  Constitution  by way of Directive Principles  of  State Policy.     Disposing of the petition, this Court,     HELD: (1) The entire funding of the Sainik Schools is by the  State  Governments  and  the  Central  Government.  The overall  control  vests in the  governmental  authority.  It cannot  therefore be doubted that the Sainik School  Society is ‘State’ within the meaning of Article 12. 1405C]     (2)  Once it is held that the Sainik School  Society  is ‘State’,  application of Article 14 is attracted.  Similarly under the Directive Principles, the claim for equal pay  for equal work becomes tenable. [405D]                                                    PG NO 398                                                    PG NO 399     (3)  Substantial  contribution for  running  the  Sainik School comes from the funds of the State where the school is located.  The Central Government’s contribution is  minimal. The  mode  of funding is mainly through scholarship  by  the State  payable to the students. It follows out of this  fact

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that the employees of the Sainik School cannot be treated as Central  Government employees nor can they betreated  as  at par  with the employees of Kendriya Vidyalayas. They  are  a class by themselves.14. [405F-G]     (4)  In view of the position that the employees  of  the Sainik Society are a distinct class by themselves, there  is no merit in the claim that there has been discrimination. To put  unequals as equals is against the objective of  Article 14. [405G]     (5) The claim of equal pay for equal work is indeed  not tenable. A Sainik School intended essentially to draw  young men for being recruited into the National Defence Academy is not  an  ordinary  school. Its curriculum,  the  pattern  of teaching,  the  life  style, the  discipline  and  attention differ.  A  claim for equal pay on the allegation  of  equal work  reguires clear material to support the basis that  the work is both the institutions is the same. The claim of  the petitioner  that the work in the two institution  is  equal, and,  therefore,  the claim for equality of  pay  cannot  be accepted.[406A,C-E]     (6) The Sainik School Society being, ‘State’ is amenable to the jurisdiction of the Court and it is open to the court to  examine  whether  the conditions of service  are  of  an acceptable pattern. [406E]     (7)  The  Court accordingly  examined  the  petitioner’s demands  and  passed appropriate orders  directing  specific reliefs  in  terms  of  medical,  leave  travel   concession benefits  and house building and other advances.  The  Court however  found  nothing  unreasonable in  the  condition  of service pertaining to age of retirement. [407G]     Ajay  Hasia  & Ors. v. Khalid Mujib Sehravardi  &  Ors., [1981] 1 SCC 722 and International Airport Authority  case., [1979]3 SCC 489.

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition No. 1219 of 1987.     (Under Article 32 of the Constitution of India. )     T.S. Krishnamoorthy Iyer, P.N. Puri and R.K. Talwar  for the Petitioner.                                                    PG NO 400     Kuldip   Singh  and  B.  Dutta,   Additional   Solicitor Generals, Mahabir Singh, C.M. Nayar, A.K. Srivastava, Ms. A. Subhashini, A.S. Bhasme and A.V. Rangam for the Respondents.     The Judgment of the Court was delivered by     RANGANATH MISRA, J. This application is under Article 32 of the Constitution. The All India Sainik Schools  Employees Association  through  its President is the  petitioner.  The Sainik  School  Society  (hereinafter referred  to  as  "the Society")  is  a  society  registered  under  the  Societies Registration  Act,  21  of  1860. The  main  object  of  the Society, as available from clause 3(a) of the Memorandum  of Association is:     ‘to establish Sainik Schools in various parts of  India, providing  special school education of a high standard  with the  aim of preparing boys academically and  physically  for entry into National Defence Academy and other walks of life. " With  a view to implementing this object 18 schools  located in  different States of the country have  been  established. The petitioner has impleaded the Chairman and Members of the Board  of  Governors of the Society as respondents 1  to  6; Ministers   of   Education  of  the  seventeen   States   as respondents  7  to 23 and Principals of the  18  schools  as

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respondents 24 to 41 The petitioner has asked for a writ  of mandamus to the Union of India as also respondent No. l:     (1)  to implement the recommendations of the Fourth  Pay Commission  in  the  Sainik Schools and to  extend  all  the benefits   already  given  to  employees  of  the   Kendriya Vidyalayas by way of implementing the recommendations of the Chattopadhya Commission;     (2)  to give to the employees of the Sainik Schools  the differential  wages  in terms of the  Third  Pay  Commission between  1973 (when it applied to  Government  institutions) and  1978 (when the benefits were extended to the  employees of the Sainik Schools);     (3)  to direct that the employees of the Sainik  Schools shall  have  the benefits of leave travel  concession  house rent, pension, group insurance, contributory provident fund, pensionary   benefits  and gratuity in the same  pattern  as                                                    PG NO 401 obtaining in Kendriya Vidyalaya Sangthan or given to Defence Services Officers working in the Sainik Schools, and;     (4)  enhance the age of superanuation to 60 years as  in the case of Kendriya Vidyalaya employees.     When  notice was issued to the  respondents,  respondent No. I alone entered appearance and made a return. Apart from raising certain  technical pleas against the maintainability of the petition, it has pleaded that the Society was not  an instrumentality  of the State. According to  the  respondent No.  1, the entire capital expenditure on  land,  buildings, furniture and educational equipment and the major portion of the  recurring expenditure is borne by the  concerned  State Government/Union  Territory  Administration  of  the  places where  the  school is located.  Maintenance,  additions  and replacement are also the obligation of the respective  State Governments.  The Principal, the Head-Master, the  Registrar and  an  Army Physical Training Corps/ National  Cadet  Corp Instructor  posted  in  every school are  paid  out  of  the Defence  budget All other expenses are met out of  the  fees payable by the parents or taken out of the scholarships paid by  the  State/Central  Governments  to  the  students.  The quantum  of the fees,scholarships is fixed by the  Board  of Governors  from time to time taking into  consideration  the financial position     The  counter  affidavit accepted the  petitioner’s  plea that  several Committees had been established  for  bringing about  improvement in the functioning of the Sainik  Schools and  improvement of conditions of service such as  the  High Power Committee Sahare Committee, Balaram Committee and  the Academic   Study  Group  Though  it  essence  the   Kendriya Vidyalayas  and  the  other establishments  of  the  Central Government  differ  from  the Sainik Schools,  many  of  the benefits  admissible  to Government servants  and  Vidyalaya teachers  have  already been extended to  employees  of  the Sainik   Schools   The  counter  affidavit   traversed   the petitioner’s  averment   that  the  guideline  of   Kendriya Vidyalayas has to be adopted and the benefits admissible  to the  employees of such Vidyalayas should be extended to  the employees of Sainik Schools According to the respondent, the Sainik  Schools are of a different pattern;  the  historical background of their creation, the purpose for which they are founded  and the other benefits which are admissible to  the employees should also be borne in mind when considering  the claim raised by the petitioner According to the  respondents the claim based on the concept of equal pay for equal  work                                                    PG NO 402 contained   in   Article  39(d)  of  the   Constitution   is misconceived inasmuch as unless the nature and the status of

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the service is the same there can be no equality.     On  behalf of the petitioner a rejoinder has been  filed reiterating  some of the averments in the main petition  and meeting  some of the pleadings in the counter  affidavit  of respondent No 1.     During  the pendency of this application, the  Board  of Governors decided to extend certain advantages and  benefits to  the  employees  of the Sainik  Schools.  Some  of  these benefits had been claimed in the writ petition. An affidavit has been filed on behalf of the petitioner indicating   what are  the  claims  still  in  issue  on  the  basis  of   the respondents’  affidavit  dated  July 29,  1988.  It  is  not necessary  to  recount  the  concessions   extended  by  the Society and in our view what is claimed as subsisting  items may now be dealt with These are:     1.  The age of retirement should be 60 years  applicable to  all categories of employees being the same as  obtaining in the case of employees of the kendriya Vidyalaya Sangathan (K.V.S.).     2. Bonus and gratuity should be effective from  1.1.1986 and employees who have either retired or resigned after that date  should be given benefit of the Contributory  Provident Fund and gratuity at Central Government rates.     3  Medical reimbursement should he provided on the  same basis  as  admissible  to  K.V.S.  and  Central   Government employees.     4. Leave Travel Concession including once in a block  of four  years  to  travel anywhere in lndia  as  available  to employees of K.V.S. and Central Government employees  should be available.     5. Leave rules to all categories of employees should  be placed at par with employees of K.V.S.     6.  House Rent Allowance should be granted  with  effect from 1.10.1986, at par with Central Government employees.     7.  The  pay  scale  recommended  by  the  Chattopadhyay Commission to Teachers should be effective from 1.1.1986.                                                    PG NO 403     8.  The  Librarians should be given the benefit  of  pay revision  as per the Chattopadhyay Commission pay scale with effect from 1.1.1986.     9.  Office  Superintendent,  Accountants  and   Personal Assistant to the Principals should be given the same pay  as their  counterpart receive from the Central Government  with effect from 1.1.1986.     10.  Nursing  Sisters/Assistants/Compouders  should   be granted  pay  scales  at par  with  Pharmacists  in  Central Government  under Para-Medical Staff as per  recommendations of the 4th Pay Commission with effect from 1.1.1986.     11.  House Construction Loan, Scooter and  Car  Purchase Loan   should  be  granted  at  par  with   K.V   S./Central Government Scheme.     12.  15% extra pay over and above scales  admissible  to K.V.S.  teachers should be admissible to the  Sainik  School teachers .     13.  The difference in wages between 1.1.1973  and  30th June,  1978 on account of delayed implementation of the  3rd Pay Commission’s recommendations should be paid.     l4. Bonus for 1984-85 and 1985-86 should also be paid at par with K.V.S     15.  All  employees  who  have  retired  by  now  before completing 60 years of age and have not yet attained the age of  60  years  should  be called  back  to  duty  and  given postings.     As  we have already indicated, it is the  contention  of the  petitioner  that the Sainik School Society  is  ‘State’

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within the meaning of Article 12 and is accordingly amenable to  claim and enforcement of fundamental rights. It is  also to   be  guided  by  what  is  provided  in  Part  4of   the Constitution by way of Directive Principles of State Policy.     A Constitution Bench of this Court in Ajay Hasia &  Ors. v.   Khalid  Mujib Sehravardi & Ors., [1981] 1 SCC  722  was considering    whether  a  Society  registered   under   the                                                    PG NO 404 Societies  Registration Act of 1861 could be "State"  within the  meaning  of Article 12. Bhagwati, J., as he  then  was, speaking  for the unanimous Bench called out six tests  from the   judgment  of  this  Court  in  International   Airport Authority case (1979) 3 SCC489. Those tests are:     "(1) One thing is clear that if the entire share capital of the Corporation is held by Government, it would go a long way   towards   indicating  that  the  Corporation   is   an instrumentality or agency of Government.     (2)  Where the financial assistance of the State  is  so much   as   to  meet  almost  entire  expenditure   of   the Corporation,   it  would  afford  some  indication  of   the Corporation being impregnated with Governmental character.     (3)  It may also be a relevant factor ....  whether  the Corporation   enjoys  monopoly  status  which  is  a   State conferred or State protected.     (4)  Existence of deep and pervasive State  control  may afford  an  indication  that the Corporation  is  agency  or instrumentality.     (5)  If the functions of the Corporation are  of  public importance and closely related to governmental functions  it would be a relevant factor in classifying the Corporation as an instrumentality or agency of Government.     (6)  "Specifically,  if a department  of  Government  is transferred  to a Corporation, it would be ;l strong  factor supportive  of this inference" of the Corporation  being  an instrumentality or agency of Government."     Applying  those tests the Constitution Bench found  that the  Society which managed the Regional Engineering  College at Srinagar and several others elsewhere was ‘State’. Having said so, this Court pointed out:     "It  is  also  necessary to add that  merely  because  a juristic  entity  may be an authority  and  therefore  State within the meaning of Article 12, it may not be elevated  to the  position of State for the purpose of Articles 309,  310                                                    PG NO 405 and  311 which find a place in Part XIV. The  definition  of State  in Article 12 which includes an authority within  the territory of India or under the control of the Government of India  is  limited in its application only Part III  and  by virtue of Article 30, to Part IV; it does not extent to  the other  provisions of the Constitution and hence  a  juristic entity which may be State for the purpose of Part III and IV would  not  be so for the purpose of Part XIV or  any  other provision of the Constitution."     Applying the tests indicated at page 737 of the Reporter it cannot be doubted that the Sainik School Society is  also ‘State’.  The entire funding is by the State Government  and the Central Government. The main object of the Society is to run schools and prepare students for the purpose of  feeding the National Defence Academy. Defence of the country is  one of the regal functions of the State.     Once  it  is  held that the  Sainik  School  Society  is ‘State’   within   the  meaning  of  Article   12   of   the Constitution,  application  of  Article  14  is   attracted. Similarly  under  the Directive  Principles--the  claim  for equal pay for equal work becomes tenable.

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   The main plank for substantiating the petitioner’s claim for relief is the allegation of discrimination founded  upon the  basis that the employees of the Sainik  School  Society though  in every respect comparable to employees of  K  V.S. and  the  Central Government are not being  given  the  same treatment  K V.S. is a creation of the Government  of  lndia and  is wholly financed out of the Central Exchequer  Sainik School Society, as already pointed out, is not wholly funded by the Central Government. In fact substantial  contribution for  running the Sainik School comes from the funds  of  the State where the school is located. The Central  Government’s contribution  is  minimal  The mode  of  funding  is  mainly through scholarship by the State payable to the students. It follows  out of this fact that the employees of  the  Sainik School  cannot be treated as Central Government  employees-- nor  can they be treated as at par with the employees  of  K V.S.  They  are a class by themselves  and,  therefore,  the stand on the basis of Article 14 by pleading  discrimination against  the guarantee of equality is not available. To  put unequals  as equals is against the objective of Article  14; in the same way is to discriminate between equals The later, however,  is on the hypothesis that the two are  equals.  In view of the position that the employees of the Society are a distinct class by themselves, we do not think that there  is any merit in the claim that there has been discrimination.                                                    PG NO 406     Similarly  the  claim  of equal pay for  equal  work  is indeed  not tenable. No acceptable material has been  placed before  us  to support  the stand that the work in  the  two institutions  is  equal.  A bare  statement  that  both  the Kendriya Vidyalayas and the Sainik Schools impart  education to  the students cannot sustain the claim of equal work.  To maintain  a claim for equal pay on the allegation  of  equal work  requires clear material to support the basis that  the work  in  both  the  institutions  is  the  same.   Kendriya Vidyalayas  popularly known as Central Schools, are more  or less  schools  as understood in common  parlance.  A  Sainik School  intended  essentially to draw young  men  for  being recruited  into  the  National Defence  Academy  is  not  an ordinary  school. Its curriculum, the pattern  of  teaching, the  life style, the discipline  and attention  differ.  The Sainik  Schools are totally residential and the  teacher  is provided  accommodation  within the complex with a  view  to exposure  of students to the teacher throughout  the  period and  allow  the  teacher to  exercise  regulation  over  the students  at  all  material   times.  The  teacher  is  also expected  to  interact with the students  beyond  the  class room.  The  Principal  of the Sainik  School  is  a  defence service officer; so is the Headmaster for the lower classes; the Physical Instructor is also drawn from the Army. We  are not in a position to accept the claim of the petitioner that the  work in the two institutions is equal,  and  therefore, the  claim  for  equality of pay cannot  be  accepted.  Even though that claim is not accepted, the Sainik Schools  being ‘state’ is amenable to the jurisdiction of the Court and  it is  open to the court to examine whether the  conditions  of service are of an acceptable pattern.     The age of retirement of teachers in the Sainik  Schools is till 60 years but continuance beyond 58 years is  subject to  physical fitness and continued satisfactory  performance of duties. For non-academic staff the age is 58 years  which is  same  for most government employees.  There  is  nothing unreasonable in this condition of service. There has been  a switch over to pension and gratuity scheme with effect  from 29.7.1988. The claim of the petitioner is that it should  be

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with  effect from. 1.1.1986. Keeping the mode of funding  in view,  we  do not think the liability that  would  arise  by ante-dating  the benefit from 1.1.1986 can  be  conveniently met.  We, however, see no reason why the benefit  should  be extended  only from 29.7.1988, which is said to be the  date of the decision. It should be made operative from 1st April, ]988,  which  is the commencement of the  current  financial year.  We  would accordingly  direct that  the  pension  and revised  gratuity  scheme  should  be  made  operative  from 1.4.1988.                                                    PG NO 407      We  see no reason to interfere in the matter  of  claim for  medical  reimbursement. The Society  has  extended  the benefit  of  medical  allowance  which is a  known  form  in respect  of even government servants not covered  under  the C.G.H.  Scheme.  But  here  again  the  benefit  should   be operative from 1st April, 1988.     Coming  to  the Leave Travel Concession  advantage,  the same  should  be  available  from  1st  April,  1988,  while permitting the visit to the home town once in a block of two years. In terms of the recommendation  of the Academic Study Group, we are inclined to extend the benefit of Leave Travel Concession  for visiting any place in India once in a  block of  four years. When such scheme is being accepted  even  by non-government  employers  on the basis  that  these  visits improve  the quality of service, we extend it to the  Sainik School employees effective from 1.4.1988.     Most of the employees have accommodation provided by the Sainik  Schools and according to the Respondent No.  1  free furnished  accommodation  is provided. There  may  be  cases where in the absence of such accommodation the employees may be living in rented accommodation,  but we do not think that we should interfere in respect of this claim.     The  other claims raised do not appear to be  reasonable except  the  prayer for providing house  construction  loan, scooter,  car  purchase  loan. This is really  nOt  a  heavy burden  and  out of the fund to be created loans are  to  be provided   and  the  loan  amounts  are   recoverable   with concessional  interest. According to modern  thinking  these advantages  are  normal  service  benefits.  A   residential accommodation  adds  to the security of the employee  and  a conveyance  adds  to his mobility. We are of the  view  that this  benefit  should be admissible to  the  employees.  The Society shall, therefore, create an appropriate fund  either to be operated through every college or through such  method as may be found convenient for entertaining claims for house construction  loan  and loans for purchase of  scooter,  car etc.  as  may  be admissible in terms of the  scheme  to  be framed.  We direct that the further benefits which  we  have granted by our present order should be made available to the employees by the end of 31st March, 1989. The writ  petition is  accordingly disposed of. There shall be no order  as  to costs.     Before  we part, we would like to place on  record  that learned   Additional   Solicitor   General   appearing   for respondent  No. 1 had candidly stated in Court that if  over                                                    PG NO 408 and  above  what  the  Board of  Governors  had  decided  to sanction,  if  this  Court was of the view  that  some  more benefits should be given, the same may be ordered. R.S.S.                                 Petition disposed of.